Heritable property — Acquisition by prescription — Public pedestrian walkway through enclosed town centre — Whether use as matter of right rather than tolerance by proprietor — Legal character of proprietor as statutory corporation — User necessary to qualify route as public right of way — Lord Ordinary and Court of Session holding that particular use of way had character of general public use — House of Lords dismissing appeal
A walkway known as Tay Walk was built in Cumbernauld town centre by the Cumbernauld Development Corporation in accordance with their powers and duties under the New Towns Act 1946 and the New Towns (Scotland) Act 1968. The centre was built on a number of levels and part of it straddled a main road, which carried through traffic. It was designed so pedestrian and vehicular traffic were segregated. The part of Tay Walk which passed through the town centre was enclosed by a surrounding structure which contained shops, banks, public offices and for the first 12 or more years of its life, a hotel and a number of residential flats. Tay Walk was completed in 1966. In the late 1970s doors and fire doors were installed over part of Tay Walk. The town centre remained in the ownership of the development corporation until June or July 1987 when they were sold to the appellants. While in the ownership of the development corporation, there were no restrictions on the use by the public and the doors were never locked, notwithstanding persistent vandalism.
However, in November 1988 the appellants locked the doors at night to prevent vandalism. Thereafter, the local planning authority, in pursuance of their duty under section 46(1) of the Countryside (Scotland) Act 1967 to protect and keep open any public right of way in their area, applied to the court for a declaration that there existed a public right of way over Tay Walk. The court concluded that all the uses to which the walk way was put had the character of general use of a town-centre pedestrian thoroughfare. The Court of Session upheld that decision, but the appellants appealed to the House of Lords. They argued that unless a public user of a way was adverse to the interests of the proprietor it must necessarily be ascribed to tolerance; and that since the user of Tay Walk had been positively encouraged by the development corporation it could not amount to user as of right. For a user to be so considered there must be conflict between the interest of the users and that of the proprietors.
Held The appeal was dismissed.
1. There was no principle of law which required that there be conflict between the interest of users and those of a proprietor. Acquiescence on the part of a proprietor in continued user throughout the prescriptive period without taking steps to assert or record his right of exclusion, would result in the constitution of a public right of way against him. If acquiescence in those circumstances produced such a result, encouragement could even more readily be said to have the same consequences.
2. Not only was there no basis in law for the appellants’ proposition, but it also lacked basis in fact, having regard to the obvious disadvantage to the development corporation in having to spend substantial sums repairing vandalised property.
Peter Vandore QC and Ronald Clancy Adv (instructed by Nicholson Graham Jones, London agents for Alexander Stone & Co, of Glasgow) appeared for the appellants, James McGhie QC and Charles Macnair Adv (instructed by Bayer Rosin, London agents for Allan McDougall & Co, of Edinburgh) appeared for the respondents.